Caniglia v. Nigro Corp.

441 S.W.2d 703, 1969 Mo. LEXIS 856
CourtSupreme Court of Missouri
DecidedMay 12, 1969
DocketNo. 53352
StatusPublished
Cited by6 cases

This text of 441 S.W.2d 703 (Caniglia v. Nigro Corp.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Caniglia v. Nigro Corp., 441 S.W.2d 703, 1969 Mo. LEXIS 856 (Mo. 1969).

Opinion

HENLEY, Presiding Judge.

Action for a declaratory judgment seeking relief from a contract entered into by the owners of two adjoining tracts of land on each of which a shopping center is constructed. On August 13, 1963, respondent Nigro Corporation (hereinafter Nigro), owner of a tract of land south of and fronting on 75th street in Kansas City, Missouri, entered into a contract (hereinafter Parking Agreement or Agreement) with appellant Rock Springs Realty, Inc., (hereinafter Rock Springs), owner of a tract of land adjoining Nigro’s tract on the south side. The Agreement (set out in full in the appendix) provides, in general, that the customers of the tenants of each owner shall have unrestricted use of all parking facilities on both tracts and that neither owner shall install nor maintain any barriers or obstructions to the free movement of vehicular and pedestrian traffic or to clear visibility between buildings and the parking areas. The tenants of Nigro are Katz Drug Company (hereinafter Katz) and The Great Atlantic & Pacific Tea Company (hereinafter A & P). The principal tenants of Rock Springs are the Firestone Tire & Rubber Company (hereinafter Firestone) and T. G. & Y. Stores Company (hereinafter TG&Y).

On October 30, 1965, plaintiffs, Caniglia and Longo, and appellant, Rock Springs, entered into a real estate sales contract wherein plaintiffs agreed to purchase the Rock Springs’ property conditioned upon the purchasers obtaining a judicial determination that the Parking Agreement between Rock Springs and Nigro is either void, cancellable at will by Rock Springs, or not binding upon the latter’s purchasers. Thereafter, plaintiffs instituted this action naming Nigro and Rock Springs as parties defendant. By an amended petition filed November 1, 1966, plaintiffs alleged, in substance: (1) that the Parking Agreement is void and therefore not binding on Rock Springs or plaintiffs, because it was without consideration given by Nigro in that before the date of its execution Nigro had by lease demised to Katz and A & P all right of control and possession it had over its tract, including all the parking area; (2) that the Agreement, if valid, is not binding on plaintiffs and is terminable at will, because it creates no more than a license or personal contract between the parties thereto and does not rise to the dignity of an encumbrance on the land in the nature of an easement or restrictive covenant.

Rock Springs filed an answer, and a cross petition in five alternative counts against its codefendant Nigro. Its answer admits execution of the Agreement and the first above-related allegation of plaintiffs’ petition; otherwise, it denies generally all other allegations inconsistent with its cross petition. Rock Springs’ cross petition alleges in substance: (1) that the Agreement is void for the further reason that neither Katz nor A & P had subordinated their lease rights in the whole Nigro tract to the Agreement; (2) that the Agreement, if valid, was voidable, because Nigro, and an attorney who prepared it for both Rock Springs and Nigro, falsely represented, and Rock Springs believed and relied on the representation, that Nigro had sole control over and possession of the parking area on its property and could enter into an agreement that would give Rock Springs immediate enforceable rights in Nigro’s tract, but that Nigro failed to so bind its property; and that immediately upon learning the true facts Rock Springs rescinded the Agreement by letter to Nigro. Rock Springs further alleged, in substance, that if the Agreement is valid, is not re-scindable and has not been rescinded, the Agreement should be reformed to comply with a paragraph (hereinafter referred to) in its lease with Firestone, because the attorney representing Nigro and Rock Springs represented to Rock Springs, and it relied thereon, that the Agreement [706]*706was identical with the requirements of that lease, whereas it was not identical. Rock Springs also alleged, in substance, that the Agreement, if valid and not rescinded, should be construed to permit it to (1) erect another building or buildings on its land, (2) establish rules and regulations for parking on its land, and (3) erect and maintain certain “bumper blocks” on its land for safety and traffic regulation purposes; that to so construe the Agreement would be in violation of its terms, but that Nigro contends otherwise despite the fact that both parties to the Agreement have since its execution erected additional buildings and have controlled parking and traffic flow by means of painted lines on the parking surface and by signs. In another alternative count Rock Springs alleges, in substance, that if by its terms the Agreement may not be so construed, then the same should be reformed to so provide, because it was agreed between the parties before execution of the Agreement that Rock Springs could erect another building or buildings and regulate and control parking and traffic and the Agreement failed to so provide, because of mutual mistake of the parties and their attorney or fraud practiced on it by Nigro.

Nigro filed answer to Rock Springs’ cross petition, and a cross petition for in-junctive relief. Its answer denies generally the allegations of Rock Springs’ cross petition and further alleges, in substance: (1) that no buildings have been constructed on the lands of either party which were not contemplated by the Parking Agreement and another contract dated August 13, 1963, between these parties hereinafter referred to as the Katz Expansion Agreement; (2) that the exact location of the .Firestone and TG&Y building on the south and east lines of Rock Springs’ tract was known and agreed to by the parties and it was contemplated that that building would contain other tenants, as it does, but that it was further understood by the parties, and the Agreement reflects, that no additional buildings were to be constructed; (3) that it has not controlled parking and traffic flow other than by painted lines on the parking surface; and (4) that parking or “bumper blocks” and signs installed by Rock Springs have improperly interfered with and controlled the parking and flow of traffic between the two properties. Nigro’s cross petition for injunction alleges, in sub-tance, that it has been informed by Rock Springs, and believes, that it intends to and will build additional buildings for office and retail purposes and a postal unit on that part of its tract now used for parking spaces which will not only decrease the amount of parking space available but will obstruct visibility and the flow of traffic between the two properties in violation of the Parking Agreement; that construction of such buildings would impair, and the present threat thereof has impaired, Nigro’s relations with its tenant, Katz, which has entered into a new lease with Nigro in reliance on the Agreement.

Firestone and TG&Y, tenants of Rock Springs, were permitted to intervene as parties defendant and filed separate answers in which they take positions opposite that of their landlord and supporting that of Nigro. Firestone also filed a cross petition for declaratory relief that the Agreement grants valid and enforceable cross-easements binding upon both Nigro and Rock Springs which prohibits the erection of additional buildings on the existing parking area.

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Bluebook (online)
441 S.W.2d 703, 1969 Mo. LEXIS 856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caniglia-v-nigro-corp-mo-1969.